Posted by Eugene Volokh:
Consensual Homosexual Conduct, in Certain Circumstances, as "Conduct Unbecoming
an Officer and a Gentleman":
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244070102
An interesting decision of the [1]U.S. Air Force Court of Criminal
Appeals (U.S. v. Harvey), handed down two months ago but just now
appearing on Westlaw:
In [U.S. v. Marcum], C.A.A.F. held that constitutional challenges
to Article 125, UCMJ, 10 U.S.C. ยง 925, based on [Lawrence v.
Texas], must be addressed on an as applied, case-by-case basis.
Marcum identified a three-part test for addressing Lawrence
challenges within the military context. Under the three-part test,
courts ask: (1) was the conduct that the accused was found guilty
of committing of a nature to bring it within the liberty interest
identified by the Supreme Court in Lawrence; (2) did the conduct
encompass any behavior or factors identified by the Supreme Court
as outside the analysis in Lawrence; and (3) are there additional
factors relevant solely in the military environment that affect the
nature and reach of the Lawrence liberty interest? ...
[The court answered questions 1 and 2 by concluding that the
private, consensual conduct here was within the Lawrence sexual
autonomy right.-EV] [As to question 3, t]he appellant's case did
not involve a situation whereby the appellant was in a
superior-subordinate relationship with his paramour. His case also
does not involve the violation of the law, military instructions,
regulations, or policies as a precursor to his conduct. Lastly, the
appellant's conduct did not involve a situation wherein the
appellant was involved in a sexual relationship with the married
spouse of another military member. In short, there are no
additional factors relevant solely in the military environment that
affect the nature and reach of the appellant's Lawrence liberty
interest....
[W]e must decide whether conduct that is permissible and survives
scrutiny under Marcum can nonetheless be proscribed as conduct
unbecoming an officer and a gentleman. Axiomatically, a "higher
code termed honor" holds military officers to stricter
accountability than their enlisted and civilian counterparts.
The command structure and the necessity for good order and
discipline prohibit officers from acting in ways that "bring
dishonor or disrepute upon the military profession which [they
represent]." The elements of the offense of conduct unbecoming an
officer and a gentleman are: (1) that the accused did or omitted to
do certain acts, and (2) that, under the circumstances, these acts
or omissions constituted conduct unbecoming an officer and
gentleman.
Private conduct may constitute an offense under Article 133, UCMJ,
and there is no requirement that the conduct be otherwise
criminal.... All that is required is for the offender's conduct to
fall below the level of conduct expected of officers and to
seriously expose him to public opprobrium. Moreover, military law
is replete with examples of conduct protected by the Constitution
when engaged in by civilians but which becomes criminal when
engaged in by military members.... [T]he fact that conduct may fall
within a recognized liberty interest under the Constitution does
not mean that the conduct cannot be proscribed under Article 133,
UCMJ....
In the case sub judice, the appellant's act of performing fellatio
on a Turkish national at a time when the appellant, an officer, was
serving as a representative of the United States military abroad,
and at a time when the appellant had been confronted about and knew
rumors abounded on and off base about his alleged homosexual
relationship with another Turkish national (Mr. MH), [Footnote:
These rumors abounded throughout the Incirlik Air Base and local
Turkish communities and caused at least one Turkish national, Mr.
MH, enough consternation that he reported the appellant's conduct
to base authorities and took actions into his own hands by secretly
videotaping the appellant's act of fellatio] evinced, as the trier
of fact found, a degree of indecorum that disgraced and dishonored
the appellant and seriously compromised his standing as an officer.
In the final analysis, Article 133, UCMJ, as applied to the
appellant in this case, is constitutional.
The court affirmed the conviction, which yielded a sentence of "a
dismissal and a reprimand."
References
1. http://afcca.law.af.mil/content/afcca_opinions/cp/harvey-36641.pub.pdf
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